Ooranya Pty Ltd v ISPT Pty Ltd [No 2]
[2019] WASC 453
•10 DECEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: OORANYA PTY LTD -v- ISPT PTY LTD [No 2] [2019] WASC 453
CORAM: KENNETH MARTIN J
HEARD: 31 OCTOBER 2019
DELIVERED : 10 DECEMBER 2019
FILE NO/S: CIV 1600 of 2018
BETWEEN: OORANYA PTY LTD
First Plaintiff
BAYSWATER NOMINEES PTY LTD
Second Plaintiff
AND
ISPT PTY LTD
Defendant
CITY OF PERTH
Third Party
FILE NO/S: CIV 2276 of 2018
(Consolidated by orders of Justice Kenneth Martin on 31 July 2018)
BETWEEN: ISPT PTY LTD
Plaintiff
AND
OORANYA PTY LTD
First Defendant
BAYSWATER NOMINEES PTY LTD
Second Defendant
Catchwords:
Practice and procedure - Application for leave for joinder of extra defendant - Proposed defendant already a third party - Joinder opposed - Private nuisance tort claim - Apportionable claim - Claim that proposed defendant has adopted existing defendant's nuisance tort - Asserted joint liability - Consideration of joinder and amendment principles - Rules of the Supreme Court 1971 (WA) O 18 r 4 and r 6 - Whether 'necessary' to join extra defendant - Joinder under Civil Liability Act 2002 (WA) s 5AN - Considerations of convenience and applicable modern case management principles - Leave granted under Civil Liability Act s 5AN
Legislation:
Civil Liability Act 2002 (WA)
Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application allowed in part
Category: B
Representation:
CIV 1600 of 2018
Counsel:
| First Plaintiff | : | Mr M L Bennett |
| Second Plaintiff | : | Mr M L Bennett |
| Defendant | : | Mr M N Solomon SC |
| Third Party | : | Mr S M Davies SC |
Solicitors:
| First Plaintiff | : | Bennett + Co |
| Second Plaintiff | : | Bennett + Co |
| Defendant | : | Allens |
| Third Party | : | DLA Piper Australia |
CIV 2276 of 2018
(Consolidated by orders of Justice Kenneth Martin on 31 July 2018)
Counsel:
| Plaintiff | : | Mr M N Solomon SC |
| First Defendant | : | Mr M L Bennett |
| Second Defendant | : | Mr M L Bennett |
Solicitors:
| Plaintiff | : | Allens |
| First Defendant | : | Bennett + Co |
| Second Defendant | : | Bennett + Co |
Case(s) referred to in decision(s):
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
APT Finance Pty Ltd v Bajada [2008] WASCA 73
Elovalis v Elovalis [2008] WASCA 141 (S)
Fudlovski v JGC Accounting & Financial Services Pty Ltd [2018] WASC 476
Hart v JGC Accounting and Financial Services Pty Ltd [2015] WASCA 22; (2015) 47 WAR 582
Herridge v Electricity Networks [No 4] [2019] WASC 94
Lois Nominees Pty Ltd v Hill [2011] WASC 53
Marsh v Baxter [2014] WASC 187; (2014) 46 WAR 377
Ooranya Pty Ltd v ISPT Pty Ltd [2018] WASC 256
The Hancock Family Memorial Foundation Ltd v Fieldhouse [No 3] [2010] WASC 223
Vandervell Trustees Pty Ltd v White [1971] AC 912
KENNETH MARTIN J:
The City of Perth is currently a third party in the present action. That status within the action arises from a third party notice issued by the defendant ('ISPT') to the City of Perth on 26 April 2018.
By a minute of proposed orders dated 9 October 2019, the plaintiffs (together 'Ooranya') seek to join the City of Perth as the second defendant to the matter. Such an application requires leave at this stage, which is strongly opposed by the City of Perth on the basis that such a joinder is neither necessary nor appropriate, notwithstanding its involvement as a third party.
Ooranya's application followed my decision in Ooranya Pty Ltd v ISPT Pty Ltd [2018] WASC 256, delivered on 22 August 2018, in which I declined to order an interlocutory injunction as was sought by Ooranya.
Before turning to the present joinder application I must first outline the history of the current third party proceedings.
The third party proceedings
By the terms of its third party notice, ISPT observed that Ooranya was seeking, amongst other things, damages against it in the current action for private nuisance by reason of works that were carried out proximate to Ooranya's café area in Forrest Chase. In short, ISPT contended that if it was to be found liable to Ooranya in nuisance that, by reason of a written agreement ISPT entered with the City of Perth on 7 February 2017 ('the Walkways agreement') and a building permit issued by the City of Perth to ISPT, the City of Perth had authorised, adopted and had actual knowledge of the very activities which Ooranya claimed amounted to a nuisance against ISPT.
The Walkways agreement regarded the redevelopment of certain walkways neighbouring Forrest Chase and the Perth City Central shopping centres there located (referred to as 'the Padbury Walkways').
Accordingly, ISPT sought contribution pursuant to s 7 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) from the City of Perth on the basis that the City of Perth was a joint tortfeasor with ISPT in the event that Ooranya's private nuisance claim was made out.
There was little controversy at the time about the City of Perth being made a third party to the present action by ISPT and so, on 10 May 2018, I ordered (inter alia) that:
...
4.The third party be at liberty to appear at the trial of the action, and take such part as the judge shall direct and be bound by the result of the trial.
5.The question of the liability of the third party to indemnify or make contribution to the defendant be tried at or immediately after the trial of the action as the judge shall direct.
6.The defendant file and serve its statement of claim in the third party proceedings by no later than 28 May 2018.
7.The third party file and serve its defence in the third party proceedings, or in the application pursuant to Order 20 rule 19 of the Rules of the Supreme Court 1971, by no later than 18 June 2018.
On 29 May 2018 ISPT issued a third party statement of claim pleading therein its claim for contribution against the City of Perth.
By that pleading, ISPT made reference to:
(a)a works deed of 7 February 2017 between the City of Perth and ISPT ('works deed');
(b)the grant to it by the City of Perth of a development approval on 19 March 2015 (valid for a period of two years and then a subsequent extension);
(c)the grant to ISPT of building permits and gantry permits all then issued by the City of Perth on 19 December 2017 and 15 February 2018 respectively;
(d)ISPT's engaged contractor, Lendlease Building Contractors Pty Ltd ('Lendlease'); and
(e)the issue by ISPT of a design and construct contract of 13 October 2017 to Lendlease to perform the redevelopment works.
ISPT's third party pleading also refers to a construction management plan as prepared by Lendlease of 11 August 2017, which included as a component thereof a noise, dust and vibration plan. The City of Perth is said to have accepted the construction management plan as prepared by Lendlease and as was submitted by ISPT, on 21 August 2017.
ISPT's third party statement of claim pleading then contends that all the redevelopment work which has now been undertaken has been authorised, endorsed and contributed to by the City of Perth and the private nuisance tort contentions of which Ooranya complains by these proceedings are a natural and necessary result of the agreements and consents granted by the City of Perth to ISPT in respect of the redevelopment (par 22). Consequently, ISPT ultimately contends at par 23 against the City of Perth that:
If, which is denied, the construction works undertaken by ISPT in respect of the redevelopment constituted a nuisance to the plaintiffs, then by reason of the matters pleaded in paragraph 22 above [as summarised above] that the City of Perth is a joint tortfeasor for the purposes of s 7 of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA). (my emphasis in bold)
Accordingly, under its prayer A seeking relief, ISPT seeks a declaration that the City of Perth (if ISPT is ever held liable to Ooranya in nuisance) is a joint tortfeasor pursuant to s 7 of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act. Then, by prayer B, ISPT seeks a contribution from the City of Perth in such proportion as determined (by the court) as regards any damages as might be ordered to be paid by ISPT to Ooranya.
On 11 July 2018 the City of Perth filed a defence against the third party statement of claim of ISPT. The City of Perth denies therein that it is a joint tortfeasor as regards the nuisance claims of Ooranya (see pars 23 and 24 of its third party defence).
Hence, it may be seen that Ooranya's nuisance action as commenced by its writ of summons on 5 April 2018 (with an indorsed statement of claim) has to now pursue a tortious cause of action for private nuisance against only ISPT as sole named defendant. Subsequently, ISPT joined the City of Perth as a third party to the action at around April or May 2018. Consequently, the City of Perth has now been involved as a third party in the present action for some 18 months or so.
Ooranya's joinder application
By a minute of orders of 9 October 2019, Ooranya seeks an order that the City of Perth be added as second defendant in this action (see proposed order 4 under that minute). Further, by proposed order 5, Ooranya seeks that it has leave to file an amended writ of summons (with an indorsed amended statement of claim) in the form of a minute of proposed amended writ of summons filed 7 October 2019 ('the minute of amended SOC').
Reference to the minute of amended SOC foreshadows that the City of Perth is added to the action as the second defendant on the basis of two distinctly articulated potential causes of action sought to be brought against it by Ooranya. The first of the proposed causes of action by Ooranya as against the City of Perth finds expression under par 11 and par 11A of the minute of amended SOC in the following terms:
11The City of Perth at all material times had knowledge alternatively constructive knowledge of the matters pleaded at paragraphs 7 and 8 and the interferences stated in paragraphs 9.1 to 9.6 hereof.
Particulars
(i)The plaintiffs will refer to the Business Plan in particular the page therein numbered 41 which states to the effect that the City of Perth was aware of the disruptions that would be caused by the Redevelopment.
(ii)During a meeting on or around 20 February 2018 at the premises of Bocelli Espresso between Messrs Leo, Giuseppe and Frank Agnello of the plaintiffs, Mr Kirk Linares and Ms Elle Alavakis of the City of Perth and Mr Michael Barr of ISPT, the parties discussed the installation of the gantry works and Mr Frank Agnello raised the issues with respect to the effects of such works on the Bocelli Espresso business.
(iii)The plaintiffs will refer to emails and letters sent by ISPT to the City of Perth which were forwarded by Elle Alavakis of the City of Perth to Mr Frank Agnello of the plaintiffs between 12 April 2018 to 22 May 2018 which gave notice of and detailed the construction works, including emails entitled 'Forrest Chase - Noisy Works Notice' and 'Disruption Notice'.
(iv)The plaintiffs will refer to email correspondence between Elle Alavakis and Paul Warren of the City of Perth and Frank Agnello of the plaintiffs between 26 March 2018 and 9 April 2018 in relation to some of the interferences caused by the construction works to the Bocelli Espresso business.
(v)The plaintiffs will refer to a letter from Bennett + Co to ISPT and copies to Annaliese Battista of the City of Perth dated 1 March 2018 which details inter alia the interferences caused by the construction works to the Bocelli Espresso business.
(vi)The plaintiffs will refer to a letter from the plaintiffs to the City of Perth dated 15 March 2018 which enclosed inter alia correspondence dated from 16 February 2018 to 6 March 2018 between Bennett + Co and solicitors for the City of Perth, McLeods, in connection with the construction works.
(vii)The plaintiffs repeat paragraph 6 hereof.
(viii)The plaintiffs may provide further particulars following discovery and inspection and in any event prior to trial.
11AThe City of Perth is a joint tortfeasor of the nuisance pleaded at paragraph 10 hereof by reason of:
11A.1in the circumstances pleaded at paragraph 6 and 6A herein, it taking concerted action to pursue a common end with ISPT being the Redevelopment alternatively the redevelopment of the Padbury Walkways which works caused the nuisance;
11A.2further or alternatively, in the circumstances pleaded in paragraphs 6, 6A and 11 herein, it adopting, further or alternatively continuing, the nuisance.
Under an amended prayer for relief in the minute of amended SOC, Ooranya seeks as relief against the City of Perth, damages for nuisance and, per par 15.2, a declaration that the City of Perth and ISPT are joint tortfeasors for the purposes of s 7 of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act.
Preliminary observations as regards first proposed cause of action
It may be seen from the terms of the minute of amended SOC set out above that Ooranya seeks to add the City of Perth as a second defendant on the basis of its contended joint tortfeasor liability with ISPT. This is premised upon the City of Perth effectively authorising or adopting the alleged tortious nuisance activities and works contended as against ISPT, thereby rendering the City of Perth itself liable as a joint tortfeasor with ISPT to Ooranya.
That new contention by Ooranya of joint exposure liability in the City of Perth as a tortfeasor aligns with and closely mirrors the subject matter, in effect, of ISPT's third party action seeking contribution against the City of Perth, which, of course, has now been on foot in this action for over 18 months.
Of course, ISPT as the present sole defendant in the action primarily disputes any tortious nuisance liability at all to Ooranya arising out of the activities and works in or around the Padbury Walkways. ISPT's position, however, is that if it is ultimately found liable as a tortfeasor to Ooranya, that it is entitled to a measure of contribution to that liability from the City of Perth, as a joint tortfeasor.
Thus, Ooranya's proposed amendments to add the City of Perth as a second defendant, and to pursue it as liable along with ISPT, do not materially add to the range of issues currently presenting for resolution in the overall dispute, under the action as now framed by its current pleadings.
Ooranya's proposed amendments only add an extra dimension vis‑à-vis a direct alleged exposure liability potentially in the City of Perth to Ooranya. But the same, in effect, joint tortfeasor contention as regards private nuisance concerning the City of Perth, has been live for at least 18 months now.
Nevertheless, the City of Perth opposes joinder as a second defendant on the basis that it is not necessary now for it to be made a further defendant in the action - in accord with joinder of defendant principles which they say apply, concerning the Rules of the Supreme Court 1971 (WA) (RSC) O 18 r 6(2).
If the applicable legal threshold for joinder is 'necessity' in order for the City of Perth to be joined as an extra defendant, then the City of Perth points out that axiomatically, it can be seen here that Ooranya's nuisance action has viably been commenced without it involved as a defendant then and that, consequently, it is unnecessary for it now to be added as an extra defendant. Thus, it says the legal threshold which Ooranya is required to meet pursuant to RSC O 18 r 6(2)(b), has not been met.
Towards Ooranya's joinder application, ISPT takes a stance of neutrality, expressing no view one way or the other.
It is necessary to briefly divert now in order to refer to the second extra cause of action which Ooranya seeks leave to pursue as well against the City of Perth.
The second proposed cause of action
The minute of amended SOC also seeks to raise a distinct breach of contract cause of action as against the City of Perth - by reference to Ooranya's contentions that, under terms of its lease with the City of Perth dated 31 August 1999 ('the Lease'). By the Lease, Ooranya claims it was promised a right of first refusal as regards any new proposed business premises in the Forrest Place reserve or the Murray Street Mall reserve (between William and Barrack Streets) approved by the City of Perth for the purposes of a café or takeaway food and/or drinks kiosk and that, in effect, the City of Perth has since breached that contractual promise.
The contention as alleged relates to the City of Perth issuing a request for tender number 013-18/19 in 2018 regarding a twilight hawkers' market for the 2018 season. The awarding of a contract at or around 16 October 2018 to another party preceded the opening of a twilight hawkers' market in November 2018, which is said to be a breach of the terms of the Lease (cl 6.1 item 7 of the schedule to the Lease). That breach is said to have caused Ooranya to suffer the loss of a valuable right, namely, a denial to them of the first refusal entitlement promised them under the Lease.
These matters are all the subject of proposed pleas under pars 13A through 13L of the minute of amended SOC. They culminate in proposed relief under par 15 for damages for breach of contract.
Both ISPT through senior counsel and the City of Perth through senior counsel oppose the grant of leave to allow Ooranya pursue this extra cause of action against the City of Perth. It is submitted that it is neither necessary nor appropriate for what is an entirely distinct breach of contract cause of action to be added into the present litigation which, as mentioned, has been on foot since April 2018. There is no discernible link, it is said, as between these right of first refusal breach claims and the existing substantive private nuisance grievances of Ooranya as regards the Padbury Walkways development works and their contended deleterious economic impact against Ooranya's café business.
Hence, it is contended that the breach of contract cause of action arising from the alleged failure to honour the right of first refusal, manifestly fails to meet the requirements of necessity for defendant joinder, under RSC O 18 r 6(2).
On my assessment, that conclusion is overwhelmingly correct. Accordingly, during the hearing of the joinder application on 31 October 2019, I indicated then, during the course of argument from counsel, that leave to add this second proposed cause of action to the proceedings vis-à-vis the City of Perth as a second defendant would be refused.
Therefore, the only live issue which I then reserved for further consideration was Ooranya's application to make the City of Perth a second defendant on the basis that Ooranya seeks to pursue it directly for damages as an alleged joint tortfeasor with ISPT in relation to its original private nuisance damages cause of action in tort against ISPT.
Evidence before the court
I record that, for the purposes of evaluating the present opposed application, I have received:
(a)the written submissions of Ooranya of 11 October 2019;
(b)ISPT's written submissions of 30 October 2019 essentially expressing a position of neutrality; and
(c)the City of Perth's written submissions of 30 October 2019 opposing joinder as a second defendant essentially on the basis that the necessity threshold under RSC O 18 r 6(2) is not met.
I also received an affidavit of Clara Elisabeth Hagan sworn 11 October 2019, filed in support of Ooranya's application ('the Hagan affidavit').
Numerous case authorities are referred to in the submissions of Ooranya and the City of Perth. But for evaluative purposes, it may be more helpful if I refer first to relevant aspects of RSC O 18 r 4 and r 6, which deal with different but related situations as regards the joinder of multiple parties to an action.
The relevant rules of this court
RSC O 18 r 4
RSC O 18 r 4 relevantly provides:
(1)Subject to rule 5(1), 2 or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the Court or where -
(a)if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions; and
(b)all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions.
...
(3)Where relief is claimed in an action against the defendant who is jointly liable with some other person and also severally liable, that other person need not be made a defendant to the action; but where persons are jointly, but not severally, liable under a contract and relief is claimed against some but not all of those persons in an action in respect of the contract, the Court may, on the application of any defendant to the action, by order stay proceedings in the action until the other persons so liable are added as defendants.
Observations on RSC O 18 r 4
In 2011, RSC O 18 r 4 was the subject of extensive consideration by Beech J (as his Honour then was) in Lois Nominees Pty Ltd v Hill [2011] WASC 53. His Honour clarified the position as regards what had, to that point, been something of a widespread misapprehension that RSC O 18 r 4 had empowered the addition of new defendants to an existing action. It does not. After an extensive consideration of the history of the English predecessor rules (see [64] - [80]) his Honour observed at [80]:
[80]... The mischief to which O 18 r 4 is directed is not about amendment of existing proceedings, but is about permitting, in prescribed circumstances, multiple parties and causes of action in one writ and thus one action.
His Honour continued at [81] - [82]:
[81]... I construe O 21 r 5 as revealing an intention that the general power to give leave to amend the writ is excluded in relation to amendment to add a party. Amendment to add a party is governed by O 18 r 6, r 7 and r 8. Indeed, I am unable to identify an alternative construction of O 21 r 5(1)(a). These considerations are reinforced by the legislative history.
[82]In my view, the scheme of O 18 and O 21, read as a whole, is relevantly as follows. Order 21 governs amendment generally. Amendment to add a new party requires leave: O 21 r 1(3). The court has a general power under O 21 r 5 to permit amendment of a writ or statement of claim on such terms as are just. That general power is subject to, among other things, O 18 r 6, r 7 and r 8. That means that the general discretion to permit amendment does not apply to an application to amend so as to add a new party. Applications to add a new party are governed by O 18 r 6, r 7 and r 8. Order 18 r 4 is not directed to amendment of a writ or statement of claim. It concerns joinder of parties. It does not itself permit amendment of a writ or statement of claim to add new parties.
From a policy perspective, his Honour continued to render an observation I think entirely apposite to the current application regarding the limits of RSC O 18 r 6, measured by reference to the wider scope at the commencement of an action to join defendants via RSC O 18 r 4. I also endorse the observation made as to the desirability of greater flexibility, which remains an ongoing issue. His Honour said at [83]:
It is true that this construction results in what is, to my mind, a less than optimal position. There will be cases in which joinder at the outset would have been permissible under O 18 r 4(1), either by satisfaction of par (a) and (b) or by leave, but which do not engage the narrower power in O 18 r 6. For those cases, a plaintiff must commence new proceedings against the additional defendant and apply for consolidation. Greater flexibility in the court's powers would be desirable. However, in the process of construction, those considerations of consequence and inconvenience seem to me to be significantly outweighed by the textual and linguistic considerations, the structure of O 18 and O 21, and, to a lesser extent, the history of the relevant rules as I have outlined. When all these matters are considered, I do not think that the broader construction is a reasonably available construction. Thus I do not think that the requirements of O 1 r 4B(2) in construing the rules, and any advantage that the broader construction has in advancing O 1 r 4B(1) goals, justifies or requires the adoption of the broader construction. (my emphasis in bold)
RSC O 18 r 6
Next, it is helpful to set out the relevantly applicable component of O 18 r 6, which provides in the following terms:
(2)At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application -
(a)...
(b)order that any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party,
but no person shall be added as a plaintiff without his consent signed in writing or in such other manner as may be authorised.
(3)An application by any person for an order under subrule (2) adding him as a defendant must, except with the leave of the court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter.
Observations on RSC O 18 r 6
Regarding O 18 r 6(3), I should note the Hagan affidavit (of some 192 pages) which appends multiple documents, including a copy of the Lease granted by the City of Perth to Ooranya, stamped 9 November 1999.
As regards a venerable body of law underlying RSC O 18 r 6, I note extensive observations made by Corboy J in Wurth Australia Pty Ltd v Burgess [2012] WASC 504, applying Lois Nominees v Hill (see [55] - [56]), then engaging in an extensive discussion of the provisions of RSC O 18 r 6(2)(b) commencing at [57]. In particular, his Honour considered the observations by the Court of Appeal in Elovalis v Elovalis [2008] WASCA 141 (S) at [6] and the need for the phrase 'all matters in dispute' to be given a beneficial interpretation. Nevertheless, his Honour concluded at [57(d)] that although RSC O 18 r 6(2) is to be interpreted beneficially, the test imposed by the rule is one of necessity and that 'a party cannot be joined merely because it is thought to be just or convenient', applying case authorities to that end, including The Hancock Family Memorial Foundation Ltd v Fieldhouse [No 3] [2010] WASC 223 and Vandervell Trustees Pty Ltd v White [1971] AC 912, 935 - 936 (Viscount Dilhorne).
Discussion of RSC O 18 r 4 and r 6
Ooranya's application now seeking the joinder of City of Perth as second defendant is explicitly advanced pursuant to RSC O 18 r 6, not r 4, to accord with the defendant joinder principles well established and applied in this court under Lois Nominees v Hill, and then by Wurth Australia Pty Ltd v Burgess. Whilst not expressly evident from Ooranya's minute of proposed orders, the invocation of RSC O 18 r 6 is a necessary inference from par 8 of Ooranya's written submissions which contend:
8.It is evident that it is necessary and appropriate that the City be joined as a defendant to the plaintiffs' claim, in circumstances where the:
8.1claim against the City relates to the nuisance the subject of these proceedings; and
8.2third party claim and the proposed writ both allege that the City and ISPT are joint tortfeasors in respect of the nuisance.
The central theme of Ooranya's joinder submission towards O 18 r 6(2) is that it is a remedial provision and so, should be given a beneficial interpretation, by affording it the widest possible interpretation that its language will permit, invoking Elovalis v Elovalis at [6] and APT Finance Pty Ltd v Bajada [2008] WASCA 73 at [34]. Supporting its application for defendant joinder, Ooranya submits that the intended cause of action and relief as against the City of Perth is inextricably linked to its existing claim against ISPT - because the City of Perth is alleged to be a joint tortfeasor with ISPT in respect of the private nuisance caused by the Forrest Place construction works conduct on, around or adjacent to Ooranya's leased café premises.
Next, it is contended by Ooranya that the court will, in any event, be required to determine whether or not the City of Perth and ISPT are joint tortfeasors in relation to alleged private nuisance, by reason of ISPT's third party claim which essentially has been advanced against the City of Perth now for some 18 months. Joinder is said to be buttressed by the absence of any undue costs or delay associated with a joinder of the City of Perth as a second defendant in the proceedings, which are correctly said to still be at a relatively early stage (with the pleadings not yet closed and with discovery not yet given).
Then it is said that modern case management principles also favour a joinder of the City of Perth as an extra defendant on the basis of efficiency, proportionality and an overall just determination of litigation. It is said that if the City of Perth were not to be so joined, Ooranya would then be required to commence separate proceedings. That course would see an inefficient duplication of court and party resources, involve the undesirable need to determine identical issues in distinct proceedings and risk inconsistent findings as well as a duplicating expense as regards the limited public resources.
The contention by Ooranya towards its satisfaction of the necessary threshold under RSC O 18 r 6(2)(b) had been the exclusive basis on which its application for leave had been advanced, then pursued on paper. However, at the hearing of arguments on the application for leave, counsel for Ooranya, Mr Bennett, sought to verbally augment Ooranya's application by invoking the Civil Liability Act 2002 (WA). In particular, Mr Bennett sought to invoke s 5AN, which provides in the following terms:
5AN. Joining non-party concurrent wrongdoers in the action
(1)The court may give leave for any one or more persons to be joined as defendants in proceedings involving an apportionable claim.
(2)The court is not to give leave for the joinder of any person who was a party to any previously concluded proceedings in respect of the apportionable claim.
The term 'apportionable claim' seen above is found defined under the Civil Liability Act: see s 5AI, and which relevantly provides that within Part 1F of the Act 'apportionable claim' means:
(a)a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care (but not including any claim arising out of personal injury); ...
Mr Bennett then referred me to some recent observations by Le Miere J in Herridge v Electricity Networks [No 4] [2019] WASC 94 from [534] concerning a potential apportionability in a private nuisance action as between tortfeasors under the Civil Liability Act depending upon the underlying facts sustaining the nuisance tort as regards showing fault, which might or might not be a component of the material facts of the tortious conduct.
See, by contrast, my observations in Marsh v Baxter [2014] WASC 187; (2014) 46 WAR 377 [355] - [365] as regards local case authority at that time.
None of Mr Bennett's late verbal submissions, of course, were the subject of Ooranya's written submissions to support the present application. They emerged on an ad hoc basis during the course of the hearing - essentially leading to a need for me to reserve to consider the late emerging fresh contentions regarding joinder. From the perspective of the City of Perth, its position, reaffirmed by senior counsel, Mr Davies SC, during the hearing is that, applying principles as summarised by Corboy J in Wurth v Burgess at [57], that the necessity threshold of RSC O 18 r 6 was not met because, although the rule is interpreted beneficially, the necessity requirement is textually self evident and its application conditions the rule and requires a tougher joinder of defendant threshold than simply an application of a just and convenient test.
As I indicated, ISPT expressed a position of neutrality. By its written submissions of 30 October 2019, however, it adds:
3.However, if the plaintiffs had joined the City of Perth as a joint tortfeasor to the nuisance claim from the outset, the third party proceedings would not have been necessary. As the order for joinder will render the third party proceedings nugatory, the plaintiffs should be ordered to pay ISPT's costs of the third party proceedings to date.
Final evaluation
The commencing words of RSC O 18 r 6(2)(b) first envisage the scenario of a person who 'ought to have been joined as a party'. Applying that first limb directs attention vis-à-vis the City of Perth back to O 18 r 4(1). Given a contention that ISPT and the City of Perth are joint tortfeasors as regards Ooranya's private nuisance tortious grievances, I am left satisfied that a court here would have granted leave had there been an application made at the outset by Ooranya under O 18 r 4(1) for leave to make ISPT and the City of Perth first and second defendants respectively. However, no such leave application was made before the commencement of the proceedings.
Still then and also as regards the word 'ought', the next question, again back by reference to RSC O 18 r 4, is whether under (1)(a) some common question of law or fact would arise in separate actions, had they been brought against each of ISPT and the City of Perth. Clearly, the answer to that question must be in the affirmative as regards the private nuisance joint tortfeasor contentions of Ooranya. However, the two limbs of O 18 r 4(1)(a) and (b) are conjoint. Thus, it is necessary that the requirement of subpar (b) also be met to allow the commencement without leave of an action against both ISPT and the City of Perth (hypothetically now, of course) by reference to all rights to relief claimed being in respect of or arising out of the same transaction or series of transactions.
As regards that RSC O 18 r 4(1)(b) component, I am not satisfied that it is not satisfied. That arises on the basis that it seems that the transactions referred to and relied upon by Ooranya to now contend that the City of Perth authorised and has effectively adopted itself the tortious nuisance conduct of ISPT (through Lendlease) must involve a series of further transactions. These transactions must go beyond the mere fact of the contended private nuisance works activities in respect of which ISPT was originally pursued exclusively by Ooranya as sole defendant.
That all being the case, my hypothetical evaluation of RSC O 18 r 4(1)(a) and (b) in combination is to the effect that it cannot be said from them for the ultimate purpose of meeting O 18 r 6(2)(b), that here the City of Perth 'ought to have been joined as a party'.
That conclusion, however, is not the end of an O 18 r 6(2)(b) inquiry -since that subparagraph then delivers a further gateway to defendant joinder component by the necessary test (vis-à-vis the City of Perth) as regards such a joinder ensuring
that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon ...
I echo the observations of Beech J in Lois Nominees v Hill at [83] to which I earlier referred as to O 18 r 6(2) not extending as widely to cover each defendant situation which might otherwise have been accomplished by joinder at the outset of an action. In so doing, my end view here is that whilst it would be eminently sensible or convenient to now add the City of Perth as a second defendant (given that it is already a third party vis-à-vis ISPT by reason of a like joint tortfeasor contention) that, nevertheless, this course is not necessary. The nuisance action of Ooranya is perfectly capable of proceeding to a trial and to being determined as it is now framed by Ooranya solely as against ISPT as defendant. To the extent that, within the proceedings as currently framed, the court ever finds it necessary to resolve apportionality of liability issues as between joint tortfeasors on an apportionable claim, there is a full scope for that to occur without the City of Perth being made an extra defendant both under the Civil Liability Act or within the third party action.
Furthermore, Ooranya is at liberty to commence a fresh action against the City of Perth ventilating its joint tortfeasor nuisance claim and then seek to apply to have that action consolidated with the present action, or at least have it heard together with this action at trial. As regards determining proportionate liability in circumstances of apportionable claims, see s 5AK(1)(a) and (b) of the Civil Liability Act and, further, s 5AK(4), which is expressly applicable whether or not all concurrent wrongdoers are a party to the proceedings. See also s 5AK(5).
Given such considerations, I would, at the end, have been driven to decline Ooranya's present application made under RSC O 18 r 6 for leave to add the City of Perth as a second defendant, applying the criteria of RSC O 18 r 6(2)(b) on the basis that that course, whilst desirable, is not, as I must assess it in the law, 'necessary'.
Joinder by s 5AN of the Civil Liability Act
However, that negative joinder position by the RSC needs to be re‑evaluated given Mr Bennett's last minute verbal submission invoking Ooranya's late reliance on s 5AN(1) of the Civil Liability Act.
I have already set out the terms of that provision - which must also be evaluated as providing an independent legislative basis beyond the RSC to enable a grant of leave for one or more persons to be joined as defendants in civil proceedings that involve an apportionable claim.
In this new area, I first will note the observations of the Court of Appeal in Hart v JGC Accounting and Financial Services Pty Ltd [2015] WASCA 22; (2015) 47 WAR 582. By that decision, Murphy JA (with whom Martin CJ and Newnes JA agreed) evaluated those Civil Liability Act provisions albeit in somewhat distinct factual circumstances. At first instance I had made Mr Hart an extra defendant to the defendant's counterclaim filed in the primary proceedings, over Mr Hart's and the plaintiff's fervent opposition, pursuant to s 5AN(1) of the Civil Liability Act: see Fudlovski v JGC Accounting & Financial Services Pty Ltd [2018] WASC 476. In Fudlovski the defendant was contending as its central defence at the looming trial that it had been Mr Hart's allegedly negligent professional advice which was the dominant cause of the substantial proportion of the financial damage which the plaintiff was seeking from the defendant. In those circumstances, I had taken the view that Mr Hart should be made an extra defendant to the counterclaim of the defendant, albeit on the basis that Mr Hart had absolutely no obligation to otherwise participate in the action and, if he chose not to, might file a submitting appearance (see [19]). I thought that course both fair to Mr Hart given what was to be said about him at trial and was also desirable, to avoid any subsequent potential inconsistent findings arising out of subsequent litigation against Mr Hart by the plaintiff. Nevertheless, the Court of Appeal thought otherwise, particularly after the plaintiff proffered an undertaking on the appeal not to proceed against Mr Hart (see Hart [64] and [67]), thereby addressing the issue troubling me concerning in Fudlovski a risk of a multiplicity of suits and possibly conflicting judgments.
The present position, of course, is different, with ISPT having already made the City of Perth a third party to the proceedings some 18 months ago. Here there is, unlike in Hart, absolutely no prospect, I assess, of a lack of standing issue (applying Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564) as regards the issue of declaratory relief against a concurrent wrongdoer. The position in Hart of a bare declaration toward an added party's liability being assessed as abstract and hypothetical and not determining a legal controversy between Ooranya and the City of Perth does not arise: compare [56] of Hart.
In Hart, Murphy JA nevertheless rendered some insightful observations concerning s 5AN of the Civil Liability Act which I will mention as follows (I note that his Honour refers to the Civil Liability Act as the 'WA Act'):
[35]It is convenient to restate here the wording of s 5AN of the WA Act:
(1)The court may give leave for any one or more persons to be joined as defendants in proceedings involving an apportionable claim.
(2)The court is not to give leave for the joinder of any person who was a party to any previously concluded proceedings in respect of the apportionable claim.
[36]The plaintiffs accepted in this appeal that a plaintiff would not, at least generally, need leave to join a concurrent wrongdoer as a second defendant (in the ordinary sense of that term) to an action. It was also accepted that the power under s 5AN(1) to join a 'defendant' (in the sense defined in s 5AK(5)) is evidently designed to facilitate the joinder to the proceedings of another concurrent wrongdoer, even where the plaintiff has not joined that person as a defendant (in the ordinary sense of that term) to the action ...
[37]Joinder under s 5AN, when read with s 5AK(5), contemplates joinder of a concurrent wrongdoer 'under this Part [pt 1F]' or 'under rules of court' or 'otherwise'. Given the subject matter of s 5AN(1) - joinder - the words 'or otherwise' in s 5AK(5) would appear to at least include the Supreme Court Act 1935 (WA) and the inherent jurisdiction of the court. Accordingly, the joinder contemplated by s 5AK(5) is not confined by the rules of court governing the joinder of parties.
[38]The power to join a concurrent wrongdoer 'under' pt 1F of the WA Act is a discretionary one - the court 'may' grant leave under s 5AN(1): s 56(1) of the Interpretation Act 1984 (WA). Where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except insofar as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40. The following observations, which are not intended to be exhaustive, may be made.
[39]In the case of pt 1F of the WA Act, in relation to proceedings involving an apportionable claim, the court is to give judgment against a defendant for no more than the amount which the court considers 'just having regard to the extent of the defendant's responsibility for the damage or loss': s 5AK(1)(a) of the WA Act. Matters relevant to the attainment of justice in that respect would be relevant considerations in the exercise of discretion under s 5AN(1).
[40]Ordinarily, and all other things being equal, it is in the interests of justice for the court to have before it, so far as practicable, all the relevant materials to enable it to determine what is 'just': s 5AK(1)(a). Also, ordinarily the conception of a 'just' determination does not involve making adverse findings on questions of responsibility for loss (as opposed to questions of fact arising in the course of giving evidence) against a person who has not had the opportunity to be heard (even where the findings would not formally bind that person).
[41]Thus, for example, if a concurrent wrongdoer is properly made a party to, and participates, in the proceedings:
(a)the concurrent wrongdoer would be amenable to orders for discovery and be subject to the continuing obligation to give discovery, and would be amenable (although in practical terms this consideration is less significant) to an order for interrogatories;
(b)there is the potential for the real issues to emerge, or emerge more clearly, by the concurrent wrongdoer providing a pleading or some other document, eg, a statement of issues, facts and contentions, designed to facilitate the identification of the true issues; and
(c)the other parties would be in a position to cross‑examine the current wrongdoer (or its witnesses) if the concurrent wrongdoer (or its witnesses) gave evidence: cf Lion-Dairy & Drinks Pty Ltd v Jacobs Group (Australia) (No 5) [2014] FCA 897 [41].
[42]Of course, these forensic consequences cannot always be assured. They would not materialise if the concurrent wrongdoer, once joined, chose not to participate in the proceedings, as may well be the case if the concurrent wrongdoer is uninsured and impecunious. Matters of that kind may be the subject of evidence in a particular case.
[43]The likelihood and extent to which joinder would add complexity and delay to the litigation may also be factors to be considered in determining whether or not to permit joinder of additional parties under s 5AN(1).
[44]Further, in exercising the court's discretion under s 5AN(1), the attitude of the plaintiff to the proposed joinder will also generally be an important, albeit not determinative, consideration. Ordinarily, it is up to the plaintiff to decide which person the plaintiff wishes to join as a defendant. That consideration has particular force in the context of pt 1F where the identity of potential wrongdoers are to be brought to the attention of the plaintiff under s 5AKA, but the plaintiff has no obligation to proceed against such persons. The position under the WA Act may be contrasted with the broadly equivalent position under the Queensland legislation: s 32 of the Civil Liability Act 2003 (QLD) (Queensland Act). Section 32(1) of the Queensland Act provides, in effect, that a plaintiff must bring its claim against all persons who the plaintiff has reasonable grounds to believe may be liable for the loss or damage. Moreover, s 5AM of the WA Act provides that nothing in pt 1F, or any other law, prevents a plaintiff from subsequently bringing proceedings against a concurrent wrongdoer.
[45]A decision to join a person as a party to proceedings also involves broader considerations relevant to the administration of justice generally. Accordingly, that matter (the general administration of justice) will also be relevant in determining whether or not the court should exercise its discretion under s 5AN(1) of the WA Act.
[46]Thus, for example, the prospect of multiplicity of suits, with the potential for inconsistent findings, if joinder were not ordered, would ordinarily be of some relevance. Res judicata estoppels (cause of action or issue estoppels) would apply in relation to subsequent proceedings by a plaintiff against a concurrent wrongdoer who had been a defendant to the earlier action, and issue estoppels would apply as between the plaintiff and a third party to the earlier action. As to the position of issue estoppel applying as between a plaintiff and a third party to the earlier action, see Sandtara Pty Ltd v Abigroup Ltd (1997) 42 NSWLR 5, 8 - 9. Section 5AM would not preclude the operation of res judicata estoppels in those circumstances. However, this consideration in itself would not ordinarily be conclusive or even of fundamental importance, given the presence of s 5AM in the statutory scheme, read with s 5AK(3)(b) and s 5AKA.
[47]Ultimately, the question is to be determined by whether, on the evidence before the court and having regard to the issues in the litigation, and bearing in mind the statutory scheme in pt 1F as a whole, it is in the interests of justice to grant leave to join a 'defendant' under s 5AN(1) of the [WA] Act.
[48]As indicated earlier, joinder under s 5AN(1) is not confined by the rules of court which govern the joinder of parties. Nevertheless, the rules of court may be relevant to the conduct of a proceedings generally if a concurrent wrongdoer is joined to the proceedings.
...
[50]Order 4A r 2(1) provides that a case management direction is any procedural direction that in the court's opinion is just to make in a case to facilitate the attainment of the objects referred to in O 1 r 4B(1).
[51]As the primary judge, with respect, correctly observed:
Where a joinder as an extra defendant is ordered, then case management directions may then be given to address the basis for that added defendant's participation. The action can then be case managed accordingly ([Fudlovski v JGC Accounting & Financial Services Pty Ltd [No 2] [2013] WASC 301] [48]).
[52]Thus, for example, if a concurrent wrongdoer were added as a defendant (in the ordinary sense of that term) to the plaintiff's action, but the plaintiff nevertheless chose not to claim relief against that defendant, there would be no reason why the court could not, for the purposes of determining what is 'just' within the meaning of s 5AK(1), make orders for each of the two defendants to file and serve a statement of issues, facts and contentions on the question of their respective comparative responsibility for the damage or loss claimed by the plaintiff. Limited discovery confined to those issues could also be ordered.
Of particular importance to the present application under s 5AN(1), by reason of those observations from Hart emerge the following factors:
(a)that the power of the court through s 5AN(1) to join a defendant is evidently designed to facilitate the joinder to the proceedings of another concurrent wrongdoer, even where the plaintiff has not joined that person as a defendant (in the ordinary sense of that term) to the action (see [36] above of Hart);
(b)that the joinder contemplated by s 5AN is not confined by the rules of court governing the joinder of parties (see [48] of Hart); and
(c)that the power to join a concurrent wrongdoer under pt 1F is discretionary as regards a grant of leave under s 5A(1) (see [44] and [47] of Hart).
Joinder determination under s 5AN
Applying such considerations underlying s 5AN(1) to present circumstances, I am of the end view that as a matter of discretion a joinder of the City of Perth as a second defendant is a convenient course and, applying case management principles, is desirable. By my assessment, such a joinder accords with just and cost effective case management of the present action and would add very little in terms of further issues to matters presently lying in dispute as between all parties. I see little capacity for a defendant joinder to add to the dimensions of discovery as a burden upon the City of Perth above or beyond the level of burden already encountered by it as a third party in the action now for over 18 months.
Whilst this course will require some catch-up adjustment across all parties' pleadings, the pleadings are presently still incomplete and the task of addressing this extra joint tortfeasor defendant issue as regards the City of Perth does not present to me as being unduly oppressive or time consuming in the overall scheme of the present litigation which, unfortunately, is still in its early phases and remains some distance away from a trial.
In all these circumstances, I am persuaded to grant leave to Ooranya pursuant to s 5AN(1) of the Civil Liability Act to add the City of Perth as a second defendant to the present action.
Leave to that end being granted, I would also grant leave pursuant to RSC O 21 r 5 for Ooranya's writ and indorsed statement of claim to be amended - but only in respect of the joinder of the second defendant as the joint tortfeasor by private nuisance adoption towards the City of Perth under the minute of amended SOC which I have set out earlier.
In that regard, I accept it as being arguable at this stage, by reference particularly to observations of Le Miere J in Herridge at [544] that the present private nuisance action against ISPT in tort is arguably an apportionable claim vis-à-vis ISPT and the City of Perth as joint tortfeasors as regards the tort of private nuisance and some underlying fault. It is not necessary for me to render any findings beyond that observation of bare arguability at this time.
I am also of the prima facie view that Ooranya should bear the costs associated with the present hearings, given that it is their late application seeking leave and requiring the indulgence of the court which has, in the end, partially succeeded. However, the end success was predicated upon an eleventh hour verbal argument raised in oral submissions which, but for its late emergence, would otherwise have seen the present application completely dismissed.
In those circumstances, ISPT and the City of Perth should have their costs and, given the underlying complexity of issues and extensive nature of the exchanged materials, those costs should be taxed without reference to scale limits and, once ascertained (by agreement on taxation), be paid immediately.
The parties should now confer concerning orders implementing these reasons and ultimately provide the court with, hopefully, an agreed minute of orders within seven days of the publication of these reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DW
Associate to the Honourable Justice Martin10 DECEMBER 2019
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